Beth P. Zoller, JD, XpertHR Legal Editor
With winter weather on its way and the holidays upon us, many employers will be holding a holiday office party or end of the year celebration as a way to show appreciation to employees for their hard work. In order to make sure that the event runs smoothly and to minimize employer liability, an employer needs to consider the following in planning:
Step 1: Pick a Venue, Time and Activity Convenient and Appropriate for All Employees
Employers should aim to pick a place, time and activity that is convenient and appropriate for all employees. For example, if an employer knows that a lot of employees have family obligations after work and would require childcare, the employer may want to consider holding the event during working hours. Alternatively, the employer may choose to include employees’ family members. Employers should provide activities, entertainment and music that broadly appeals to a wide variety of employees. The employer should avoid offensive and risqué entertainment and keep things workplace appropriate.
Step 2: Avoid Overtly Religious References
Employers should host an inclusive event that takes all employees into account, regardless of religion, and creates an atmosphere that is spirited, but not overly religious in nature. The holiday party should include and incorporate employees of all faiths and not alienate those who have different beliefs and practices. Employers should avoid overly religious music and entertainment as well as holiday decorations (e.g., Nativity scenes, menorahs) that could be viewed as offensive to some employees and lead to claims of religious discrimination. Employers should also avoid hanging mistletoe as a decoration, as this not only could lead to religious discrimination claims, but also to potential claims for sexual harassment. Of course, what is considered appropriate or offensive will depend on the nature of the situation, so employers need to evaluate each situation on a case-by-case basis.
Step 3: Advise Employees on the Employer’s Policies Regarding Employee Conduct, Discrimination and Harassment
In order to minimize employer liability, the employer should make sure that prior to the event, all employees are aware of the employer’s zero tolerance policy for discrimination and harassment. The employer should also ensure that employees are aware of the employer’s code of conduct and understand how to behave appropriately and refrain from engaging in any offensive and harassing behavior. Even though the event may be held away from the employer’s premises and during what is generally considered to be nonworking hours, the employer should reiterate that the same policies are in effect and that employees should treat each other with respect and common courtesy. Doing all this will help the employer avoid potential lawsuits.
Step 4: Consider Whether Alcohol Will Be Served
An employer should be very cautious about serving alcohol at the event as this may lead to myriad issues such as injuries, discrimination, harassment and inappropriate and offensive conduct. If the employer chooses to serve alcohol, the employer should designate a management employee or someone at the venue to monitor employees’ alcohol intake. The employer should also limit how much each employee is allowed to consume by providing employees with a minimal number of tickets or tokens to get drinks. Further, the employer should make sure that all employees are completely sober before getting behind the wheel to drive. An employer may be liable for negligence if an intoxicated employee leaves the event and injures a third party or damages a third party’s property.
Step 5: Take Wage and Hour Issues into Account
The employer needs to consider whether attendance at the event will be mandatory for all employees. If it is mandatory, it may be considered work time and hourly employees may be entitled to overtime. Further, if it is mandatory, some employees may feel offended and bring a claim of religious discrimination. If attendance is not mandatory, the employer should state so in the invitation and communicate to employees that the time spent attending the event will not be considered hours worked and compensable time. Additionally, the employer should avoid discussing business matters or incorporating work-related activities into the event, such as the presentation of awards or employee training. While the employer may want to encourage employees to attend as a team-building event, the employer should not bully employees into attending or suggest that they will miss out by not attending.
Step 6: Minimize the Potential for Workers’ Compensation Claims
An employer should be proactive and take affirmative steps to minimize the potential for workers’ compensation claims. Although state laws vary, generally, an employer will be liable for employee negligence or misconduct if an employee is acting “within the scope of employment” and participating in job-related activity, and it does not normally extend to social activities. Courts have determined employer-sponsored events to be “within the scope of employment” if the employer receives a benefit from it or if the employer makes attendance mandatory. Therefore, in order to reduce the potential for workers’ compensation claims, the employer should avoid business-related activities at the social event and avoid making it mandatory. Additionally, the employer should aim to make employee safety a top priority by choosing a safe and appropriate venue and avoiding risky activities that may lead to accidents.
Step 7: Train Supervisors to Set a Good Example and Enforce the Employer’s Policies
It is critical for the employer to notify all managers, supervisors and anyone else with authority that they are responsible for enforcing the employer’s policies regarding discrimination and harassment as well as the employer’s code of conduct. Even though the event may be held during nonworking hours and away from the employer’s premises, it is important for supervisors and managers to set a good example for the rest of the employees. Also, supervisors and managers should be trained to identify instances of inappropriate conduct and to immediately report them to the employer or HR.
Step 8: Act in a Timely Manner if Any Complaints Are Made
Employers should be sure to take immediate action if the employer or HR receives a complaint regarding discrimination or harassment or any other inappropriate and unprofessional conduct from an employee or supervisor. In such a situation, the employer should document the complaint and follow up with a thorough investigation by interviewing all potential witnesses. The employer should evaluate the facts and come to a reasonable conclusion regarding what occurred. The employer should not hesitate to impose appropriate disciplinary measures.
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